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Montana Lawmakers Consider Changes To Lethal Injection Drugs

The Montana Capitol Building in Helena.

The death penalty, while legal in Montana, hasn’t been used in over a decade. A bill in the legislature would expand the definition of drugs that could be used in executions and make it possible to move forward with the executions of the two men sentenced to death in Montana.

As YPR News’ Jess Sheldahl tells YPR News Director Nicky Ouellet, lawmakers say it’s simply a technical change, while activists argue the bill is inherently tied to the morality of execution.

Nicky Ouellet: Two bills about the death penalty have been introduced during this legislative session. One to repeal the death penalty and one to expand the definition of drugs that could be used for lethal injection. Can you tell me a little more about those bills?

Jess Sheldahl: Yeah, so House Bill 335 would have repealed the death penalty. Democratic Rep. Ed Stafman from Bozeman introduced the bill and five other democrats and two republicans co-sponsored it. The House Judiciary Committee tabled the bill, so in effect, it didn’t pass.

Bills to eliminate the death penalty in Montana are regularly introduced at the state capitol. During the 2017 session Republican Rep. Adam Hertz introduced one such bill which failed to pass in committee by a single vote.

Then there is House Bill 244, which would expand the definition of drugs used for lethal injection. This bill has passed through the House by a vote of 56-42 and now moves on to the Senate.

HB 244’s sponsor, Republican Representative Dennis Lenz from Billings, said when introducing the bill in the House Judiciary committee that the legislation addresses a technical change to Montana law.

“I say it kind of tongue-in-cheek, 244 is indeed a simple bill. It addresses a simple line, as you can see, between first page 21, line 21 through 23, but the subject matter is not simple” Lenz said.

The lines he’s referencing there say Montana must use an ultra-fast acting barbiturate in combination with a chemical paralytic agent. The bill would get rid of that language and replace it, saying the punishment of death must be inflicted using an injection of a substance or substances in a lethal quantity sufficient to cause death.

Nicky: The last time Montana executed an inmate was in 2006. The last time a Montana court sentenced someone to death was nearly 30 years ago, with the sentencing of one of the two men still currently facing lethal injection. Why is Representative Lenz bringing this legislation forward now?

Jess: Representative Lenz references a 2015 district court case in his arguments for expanding the definition, saying Montana is the only state in the U.S. that specifies the class of drug used for execution.

Lewis and Clark County District Court Judge Jeffery Sherlock ruled the drug the DOC planned to use, pentobarbital, did NOT meet the definition of “ultra-fast-acting” required by state law. As a result, Judge Sherlock prohibited the state from using pentobarbital for lethal injections, effectively stopping all executions in the state.

Lenz points to part of Judge Sherlock’s ruling where he writes “the state’s remedy is to ask the Legislature to modify the statute to allow the use of pentobarbital or other slower acting drugs.” Lenz says HB244 aims to do just that.

Nicky: What has the reaction to this bill been at the capitol?

Jess: Attorney General Austin Knudsen testified in support for HB244. Knudsen says limiting the drugs available to the DOC for lethal injection to “ultra-fast-acting barbiturates" got the state into legal trouble.

“Because basically what happened is the companies that make quote 'ultra-fast-acting barbiturates' figured out that states were using it to inflict the death penalty. And as a matter of corporate protest, I guess you could say, they stopped making it and they stopped importing those drugs,” Knudsen said.

Other lawmakers in the House who voted to pass HB 244 agreed during testimony, the bill makes a technical change to Montana code in order to carry out the law as intended.

Amy Sings in the Timber with the Montana Innocence Project testified in opposition to the bill to expand the drug definition. Sings in the Timber says she was disappointed but not surprised when legislation to repeal the death penalty was tabled in committee.

“The abolition bill has come up every session for a long time. And I think that in some respects the state of Montana is ready to address a protocol question before they’re ready to address the question as to whether the death penalty in Montana should continue to exist” Things in the Timber said.

Others who testified in opposition to HB2 44 say framing the legislation as a technical change ignores the ethical and moral implications of effectively re-instating the death penalty.

Agruements that came up in debate and testimony in oppoition to using the death penalty in Montana include the general sanctity of human life, the possibility of killing an innocent person and that lethal injection counts as cruel and unusual punishment, which violates the U.S. Constitution.

Nicky: If passed, HB 244 would allow the state to move forward with executions. How else might it affect Montanans?

Jess: According to a fiscal note attached to the bill, the estimated cost of an execution would be about $95,000, and the state Department of Corrections estimates, based on past death penalty cases, defending the department against potential legal challenges would cost an estimated $400,000, at least.

However, Robert Dunham, Executive Director of the Death Penalty Information center, says the proposed legislation might not address the issue of the DOC actually getting the drugs they need to perform executions.

“Changing the definition addresses the question of whether there aren’t any drugs anywhere that satisfy the current definition. That gets resolved. It does not address and cannot even begin to address the question whether the drugs are legitimately available,” Dunham says.

Basically, drug companies don’t want their medicines associated with the death penalty. So even if the state expands the kind of drugs that can be used for lethal injections, the DOC might still have difficulties sourcing lethal injection drugs. Dunham says other states obtain the drugs used for lethal injection through the grey market or small compound pharmacies, which he says raises more legal and ethical questions.

HB2 44 passed the Montana House of Representatives and was transmitted to the Senate late last month. It now moves on to the Senate Judiciary Committee, where it will have its first hearing on Tuesday, Mar. 23.

Nicky: Thanks for sharing your reporting.

Jess: You're welcome.